The Illusory Right to Abandon

By Eduardo M. Peñalver

Abstract

The unilateral and unqualified nature of the right to abandon (at least as it is usually described) appears to make it a robust example of the law’s concern to safeguard the individual autonomy interests that many contemporary commentators have identified as lying at the heart of the concept of private ownership. The doctrine supposedly empowers owners of chattels freely and unilaterally to abandon them by manifesting the clear intent to do so, typically by renouncing possession of the object in a way that communicates the intent to forgo any future claim to it. A complication immediately arises, however, due to the common law’s traditional prohibition of the abandonment of land. But the problem goes even deeper. Viewed through the lens of land, the (prospective) right to abandon virtually any form of tangible property, even chattels, is an illusion. This is because the legal prohibition of abandoning land dramatically qualifies the unilateral right to abandon chattels to the point of insignificance. The common law’s treatment of land is not an anomalous restriction within a legal regime that otherwise empowers owners to freely abandon their property. Instead, the inability to abandon land forms the foundation of a system that, among other things, helps regulate and direct the disposition of unwanted chattels by requiring those seeking to sever their bonds of ownership to do so in cooperation with others. Instead of asking why the common law treats land differently from chattels, the more appropriate question to ask is why the common law exhibits such suspicion of abandonment as a whole. Approaching the discussion of abandonment from this perspective points towards connections between the common law of property and conceptions of ownership that view the latter as a social practice suffused with obligation and duty